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1919 Supreme(SC) 32
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT HALDANE, LORD BUCKMASTER, AND LORD DUNEDIN.
SUNITABALA DEBI - Appellant
Versus
DHARA SUNDARI DEBI CHOWDHURANI - Respondents
On Appeal from the High Court at Calcutta.
Decided On : May 30. 1919.
Solicitors for appellant: T. L. Wilson & Co.
Solicitors for respondents: Barrow, Rogers & Nevill.
A mortgage of an entire property to tenants in common requires joining all mortgagees in a suit for sale. For transactions by pardanishin ladies, validity depends on a general understanding of the result and receipt of disinterested advice, rather than detailed technical knowledge.
Headnote:(A) Transfer of Property Act, 1882 - Section 67 - Mortgage to tenants in common - Where a mortgage conveys the whole property to two mortgagees as tenants in common, rather than mortgaging divided shares, it is not possible to seek the sale of only a part of the mortgaged property to realize a single debt - The proper procedure for a mortgagee desiring to realize the property, if the consent of the co-mortgagee cannot be obtained, is to add the co-mortgagee as a defendant to the suit to obtain a proper mortgage decree providing for necessary accounts and payments.
(B) Hindu Law - Pardanishin lady - Execution of documents - Standard of proof - It is not necessary to insist upon a test that depends upon a clear understanding of each detail of a matter involving legal technicalities - It is sufficient that the general result of the transaction was understood and that the lady received advice from disinterested and competent persons who had a fair understanding of the whole matter.
Facts of the case:
Following a family dispute over a will, a compromise was reached where the daughter of the deceased agreed to pay two widows specific sums, secured by a mortgage of the estate. The mortgage deed conveyed the whole property to the widows as tenants in common, with a proviso for redemption upon payment of equal amounts to each. One widow subsequently instituted proceedings for the payment of her share and the sale of half of the mortgaged property. The defendant contested the suit, arguing that partial sale of the mortgaged property was legally impermissible and that, as a pardanishin lady, the transaction was not binding due to a lack of independent and disinterested advice.
Findings of Court:
The court found that the mortgage was a conveyance of the whole property to tenants in common and not a mortgage of divided halves; therefore, the suit for partial sale was wrong in form but capable of being amended. Regarding the defendant's status, the court upheld the concurrent findings of the lower courts that the lady possessed sufficient intelligence to understand the relevant matters, understood the explanation provided, and had received independent and disinterested advice.
Issues: Whether a mortgagee in a mortgage to tenants in common can seek the sale of only a part of the property, and whether the transaction was binding on a pardanishin lady given the requirements for independent advice.
Ratio Decidendi: A mortgage of the whole property to tenants in common cannot be partially redeemed or sold; the correct legal remedy is to join the co-mortgagee as a defendant. For transactions involving a pardanishin lady, the validity of the deed is established if the general result of the transaction was understood and disinterested advice was obtained, regardless of whether every technical detail was grasped.
Result: Appeal dismissed with costs.
Legal Category Hierarchy
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property law
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mortgages
- redemption and sale
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mortgages
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practice and procedure
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pleadings
- amendment of plaint
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pleadings
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personal law
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capacity and disability
- pardanishin lady
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capacity and disability
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family law
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succession
- wills and probate
-
succession
Judgement
Appeal and cross-appeal from a judgment and decree of the High Court (June 11 and August 26, 1915), which partly affirmed and partly reversed a decree of the Subordinate Judge of Rungpur.
The suit was brought by the first respondent against the appellant and the second respondent. The plaint prayed for (1.) a decree directing the first defendant to pay to the plaintiff Rs. 89,346, with
01 Law Rep. 42 Ind. App. 272 ( 1914- 1915) Sunitabala Debi V. Dhara Sundari Debi Chowdhurani
102
interest, (2.) that upon failure to pay within the time fixed by the Court, an 8 annas share of properties mortgaged by a bond dated March 5, 1907, be sold, and the whole of the plaintiffs dues realized, with necessary accounts, (3.) that if the whole amount due to the plaintiff should not be realized a decree against defendant No. 1 to pay the balance.
The facts and the effect of the decisions below appear from the judgment of their Lordships.
The mortgage of March 5, 1907, recited the circumstances of the pending litigation, and that by the agreement of January 16, 1907, in settlement of all litigation between the parties they had agreed " that in consideration of the sum of Rs. 1,60,000 to be paid to the said mortgagees, or the sum of Rs. 80,000 to be paid to each of the said mortgagees, by the said mortgagor, they the said mortgagees and each of them should convey" to the mortgagor their right title and interest in the estate and relinquish their claim to maintenance; recited that by an indenture the widows for the said consideration had conveyed and relinquished their claims as aforesaid ; recited that the mortgagor being unable to pay the said Rs. 1,60,000 to both or Rs. 80,000 to each of the said mortgagees as aforesaid had agreed to convey " unto the said mortgagees and each of them, not as joint tenants but as tenants in common, the messuages, lands, etc., described in Sched. A " and to transfer and assign the movables described in Sched. B, subject to the proviso for redemption therein contained; witnessed that in consideration of the " sum of Rs. 80,000 so payable to " the first mortgagee, and " the sum of Rs. 80,000 so payable to " the second mortgagee by the mortgagor, the mortgagor did thereby convey to the mortgagees, in the terms above set out and recited as having been agreed, the said messuages and lands and the said movable property, "provided that if the mortgagor or her heirs, etc., pay or cause to be paid by sums of equal amounts to each of the said mortgagees, their respective heirs, etc., the said sums of Rs. 80,000 with interest at 6 per cent, per annum .... then the said mortgagees, their respective heirs or assigns will separately .... reconvey .... to the mortgagor"; and witnessed that the mortgagor in similar terms assigned the movable property subject to a proviso in similar terms ; and the mortgagor " covenanted with the mortgagees as tenants in common and not as joint tenants .... to pay on September 5, 1907, unto each of the said mortgagees, their respective heirs, etc., the said sums of Rs. 80,000 " and the interest ; and provided that " if default should be made in payment of the two principal sums of Rs. 80,000, or the interest, or any portion thereof, by September 5, 1907, it shall be lawful for each of the said mortgagees, their respective heirs, etc., .... to enter upon hold and enjoy the said messuages, lands, etc., . . . ., and take the rents and profits of the same....."
1919. May 6. De Gruyther K.C. and Sir William Garth for the appellant. The suit as framed was not maintainable. The High Court was wrong in allowing the amendment which entirely arranged the character of the suit. Upon the merits, the appellant was pardanishin, and the plaintiff did not satisfy the burden of proof which was upon her of proving that. The Courts below did not give proper effect in the law upon that question. The whole transaction was manifestly improvident and detrimental to the appellants interest. It should not have
